This page is designed to help with some of the technical terminology found in this area.
Defamation consists of
(1) slander and
(2) libel
Slander = the saying of defamatory words
Libel = the use of defamatory material in a broadcast, a painting, an advertisement or a film for example.
Defamation presumes that what has been said or communicated is false until is it proved true. Publication is usually the essential ingredient for most defamation claims eg the posting of a letter.
The law
Defamation requires that "The words used would tend to lower the claimant in the estimation of right thinking members of society generally or which would cause him to be shunned or avoided".
In short, you must show that people would think less of you.
Defences
- Justification – what was said or communicated was true
- Fair comment – expression of opinion on a matter of public interest, which is not fact
- Privilege – matters stated for example in evidence in Court
What is defamatory?
The following might be examples of when defamation occurs
Assertions about conduct and characteristics
eg to impute;
- ingratitude
- hard heartedness or insolence
- dishonesty or immorality
Ridicule
eg to publish a persons name or photograph in an advert in such a way so that the public might think that the person recommends the article advertised or to depict a person in cartoon form.
It is no defence to say the comments were a joke.
Imputation of insanity or disease
eg where comments are made with reference to a person’s job with the intention to harm that person in that job.
Imputation of insolvency
It is not necessarily defamatory to say a person owes money. But examples might be:
- a claim that a person is insolvent;
- "They are going bust" or “will be made bankrupt in a few days"
Corporations
A company may be defamed in relation to its business or how it conducts it.
A company may sue for disparaging statements about its goods, solvency or any other matter calculated to harm its business.
Court rules
Civil Courts
Defamation claims are governed by a pre-action protocol & Part 53 of the Civil Procedure Rules http://www.justice.gov.uk/civil/procrules_fin/contents/protocols/prot_def.htm
http://www.justice.gov.uk/civil/procrules_fin/contents/parts/part53.htm
For claims worth less than £10,000, a summary or ‘fast track’ process is now available (section 8 of the Defamation Act 1996.
Role of Judge and Jury
If the claim cannot be settled and is heard in Court, the judge decides whether the words used were capable of being defamatory.
If they are, it is a question of fact, usually for a jury, whether they are defamatory.
Damages
The jury is left to decide the level of compensation.
The damages awarded must be proportionate. They should provide consolation for personal distress, reparation for harm done to reputation and vindicate that reputation.
Damages may be aggravated by the circumstances of the publication, the motives and conduct of the defendant and the effect which the publication actually had. It is to reflect additional injury caused to feelings. Conduct since publication can be taken into account.
Exemplary damages may be awarded:
- where the defendant has deliberately libelled or slandered for profit, or
- where the defendant is a “government servant” and acted “oppressively or unconstitutionally”.
Damages may be reduced by ‘mitigating factors’ e.g.
- partial justification
- conduct of the claimant and/or evidence of the claimant’s bad reputation
- the making of an apology
Injunctions
These are available to stop publication or further publication where that there is no defence to the claim and it has a realistic prospect of success. Therefore they are not possible in all cases.
Explanations of specific terms are not intended to be definitive or comprehensive and have been deliberately summarised for brevity to assist the reader and are not to be relied upon as an accurate or complete statement of the current law.
For further information please contact Phil Evans, partner, dispute resolution department